Dhruba Sen v. Framingham, City of - Mayor's Office (SPR 20180131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of lbcord~ February 9,2018 SPR181131 Susan Embree Department RAO Human Resources Department City of Framingham 150 Concord Street Framingham, MA 0 1702 Dear Ms. Embree: I have received the petition of Dhruba Sen appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66,s 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sen requested the following information about the City Board of License Commissioners: names and resumes of all applicants that applied, names and resumes of all members of the screening committee which screened the applicants and selected the five candidates, and the criteria used to select the five candidates. In a response dated January 16, 201 8, the City provided certain records but withheld others under Exemption (c) of the Public Records Law. G. L. c. 4, 5 7(26)(c). The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, 5 10A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 5 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (61 7) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Susan Embree Page 2 February 9,201 8 Exemption (c) In its January 16'~re sponse, the City provided the names and resumes of the applicants awarded the positions, names and resumes of the screening committee, and the job descriptiodcriteria used to select the finalists. However, the City withheld the names and applications of the candidates who were not finalists. In his appeal petition Mr. Sen objects to the withholding of these records and notes "I respectfully submit that the details of the remaining 12 applicants, as requested, be released to the public." Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, disclosure of which may constitute an unwarranted invasion of personal privacy First clause Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an Id. identifiable individual and is of a "personal nature." at 434. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 43 1 Mass. 792,798 (2000). The courts have discussed specific categories of records that may be redacted under the 60 first clause. Globe Newspaper v. Exec. bffice of Admin. and ~inanceS, uffolk Sup. No. 11-01184-A (June 14,2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishinx Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 11.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. Globe Newspaper Co., 388 Mass. at 435 ("Not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection"); Broganv. School Comm. of Westport, 401 Mass. 306, 309 (1987).

Susan Embree Page 3 February 9,20 18 Second clause Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1,9 (1984); Attornev Gen. v. Assistant Comm'r of Real Property m, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. People for the Ethical Treatment of Animals (PETA) v. Dep't of Aeric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family Id. disputes and reputation. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of m, privacy, the private interest in preventing disclosure must yield. 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties a. in a law-abiding and efficient manner. at 292. Resumes pertaining to candidates not hired The public can reasonably expect the disclosure of qualifications of job applicants for public employment as well as those of public employees. Attorney Gen. v. School Comm. of Northampton, 375 Mass. 127, 130 (1978). It should also be noted that a general applicant who fails to advance past the initial application stage maintains an undiminished privacy interest in his identity, thus, certain information may be withheld pursuant to Exemption (c). See id. at 130, 132 n. 5. However, once applicants have undergone a preliminary screening, the privacy interests of the individuals selected for further consideration are less substantial than the privacy interests Id. of applicants who do not reach that level of consideration. at 130. An applicant's identity becomes progressively less personal as the individual approaches the final stages of the applicant screening process. Therefore, an applicant who reaches the level of a semi-finalist has become elevated to a greater position of public trust and should expect Id. open and public discussion of his candidacy.

Susan Embree Page 4 February 9,2018 The City asserts "[tlo give out the names and applications of the candidates who were not finalists would be an unwarranted invasion of their personal privacy, and could impact their current private employment." Considering the factors in the PETA decision, I find the City has met its burden to show that the candidates that were not hired have a privacy interest in these matters. See PETA, 477 Mass. at 292. However, as described above, the balancing test for Exemption (c) provides that where the public interest in obtaining the requested information substantially outweighs the seriousness Id. of any invasion of privacy, the private interest in preventing disclosure must yield. at 291. The public has a recognized interest in knowing whether public servants are carrying out their a duties in a law-abiding and efficient manner. at 292. In this instance, the public has an interest in transparency in the process of hiring, managing and compensating public employees. See Globe Newspaper Co. v. Exec. Office of Admin. & Fin., No. 116319,201 1 Mass. Super. Ct. * LEXIS 130, at 8 (April 25,201 1). The City has not met its burden to show why certain information within the resumes of the remaining twelve applicants, such as qualifications, educational and professional training and experience, cannot be provided in order to shed light on the applicant pool while also protecting privacy interests. Any non-exempt, segregable portion of a public record is subject to mandatory See discloswe. G, L. e. 66, $ 10(a). Reinstein v. Police Cornrn'r of Boston, 378 Mass. 281, 289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the City is ordered to provide Mr. Sen with records redacted in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray V Supervisor of Records cc: Dhruba Sen Christopher L. Brown, Esq.